Banishing brutality

6 December 2011

Review of Jinee Lokaneeta’s Transnational Torture: Law, violence, and state power in the United States and India

Photo: flickr / sandeep thukral

During the past decade of war in Afghanistan and Iraq, the US Army has kidnapped, detained and tortured prisoners, most of them Muslims, including some US citizens, held as ‘enemy combatants’. Not only have these detainees been confined without any well-defined charges, the Military Commissions Act in 2006 has stripped them of their right to habeas corpus as well. And while the CIA maintains secret prison camps abroad, it continues to spy on its own citizens for reasons of ‘national security’. Inside the US today many Muslim citizens are either detained as ‘material witnesses’ or ‘entrapped’ in what are called ‘home grown terrorism’ cases. Despite the change in regime with Barack Obama’s presidency, the policies enacted soon after the 11 September 2001 attacks – the so-called war on terror – have continued forms of repression worldwide.

In the name of curbing terrorism, draconian laws and measures are being implemented throughout the world, in countries as large as India and as small as Sri Lanka. It is this escalation of repressive state power that contextualises Jinee Lokaneeta’s outstanding work on torture. An activist and scholar herself, Lokaneeta analyses the relationship between state and law and violence mostly by examining works of activist-intellectuals and legal theorists and historians. Apart from philosophies and theories, buttressing her analyses are numerous post-9/11 cases relating to torture, custodial deaths and disappearances in both the US and India, which Lokaneeta studies through the eyes of legal history spanning the last century.

Transnational Torture distinguishes itself from other works on the issue by refuting the Enlightenment narrative that the use of physical and mental torment has been in steady decline since the 18th century. It also repudiates the claim that torture is absent in liberal democracies; instead, it exposes how liberal states deflect systematic investigations into torture by blaming such behaviour on a ‘few bad apples’, such as an undisciplined law-enforcement officer or a sadistic soldier. But while states rely on law to evade torture allegations, human-rights actors believe legal reforms can eliminate violence.

Some theorists claim that torture has resurfaced in modern times because of extraordinary laws such as the PATRIOT Act in the US and the Prevention of Terrorism Act (POTA) in India, passed during in the past decade. The culprit, they suggest, is the exception to these enactments to judicial accountability. Lokaneeta, on the other hand, argues that torture is in fact integral to modern liberal democracies, with a clear and continuous link between the norm and exception. In the US and India, the state tries to deny any use of excessive violence by either lying outright, by sanitising the language around methods of torture or by applying so-called hyper-legality – sophisticated legal interpretations. What is worrying for all of us is that attempts can be made to limit excessive state violence, but it will still lurk within the law. Furthermore, circulation of legal acts and discourses across the globe has never been easier, enabling any country to borrow Supreme Court rulings and laws from other countries for its own use and study. Take for example the language of the ‘war on terror’, as terrorism has become a central issue at SAARC summits in recent years.

In light of the fact that violence is inherent in the modern legal structure, how can states as different as the US (the imperialist power and self-appointed police of the world) and India (with armed conflicts in Jammu & Kashmir, the Northeast and the Maoists zone) deal with diverse contexts that give rise to torture? By examining the historical shifts and challenges that have shaped these modern states, Lokaneeta answers. As examples she points to the US Supreme Court rulings on racial mob attacks against black men during the 1930s, debates on death penalty and torture memos under the George W Bush regime; or the failure of the Nehruvian development project, subsequent mass resistance and struggles during the 1960s and the Emergency regime in the mid-1970s in India.

Transnational Torture: Law, violence, and state power in the United States and India by Jinee Lokaneeta, NYU Press, 2011

Legal lynching In many parts of Southasia, routine state violence targeting the marginalised classes is viewed as normal, an unavoidable reality. The mainstream discourse in the US, on the other hand, denies the existence of such violence, even when communities of colour experience such brutality on a regular basis. Many liberal commentators in the US were surprised by the extraordinary measures taken after the 11 September attacks, calling the steps ‘unprecedented’, ‘un-American’ and even ‘unconstitutional’. ‘This is not what America is about’ was a constant refrain. Through nuanced analysis of popular culture and legal discourse, however, Transnational Torture exposes how torture in fact is not opposed by large sections of the public.

Any denial of the existence of torture in modern liberal societies could be in part due to the urgency of the situation and the seriousness of crimes committed under the George W Bush administration. Indeed, the relatively open embrace of torture by political figures within the Bush government is unprecedented in the recent history. Without a clear and active reversal of the wide-ranging policies that came with the ‘war on terror’, extraordinary laws and justifications on the use of torture are here to remain.

In this, we should not forget racism as an important factor in structural, state-sponsored violence. In September 2011, Troy Davis, an African-American man convicted of murdering an off-duty police officer more than 20 years ago, was executed in the US through lethal injection. Davis’s case lacked physical evidence linking him to the crime, and a number of critical eyewitnesses who had originally implicated him in the murder had since recanted their testimonies. Yet despite strong voices against his execution, the state of Georgia went ahead with what many call a ‘legal lynching’. Racism is often at the heart of the death penalty in the US. Any understanding of torture and other forms of state violence therefore warrants a study from the perspective of race, class, religion and ethnicity, as the influence of these factors is often denied by liberal democracies. How is the routine police brutality that black and Latino youth face any different from torture suspected terrorists, most of whom are Muslims, face under extraordinary laws?

Poor migrants and labourers constituting the ‘low’ or ‘under’ class are often most likely to face the brunt of police brutality worldwide. And while class, gender, race and ethnicity politics are important in understanding torture, Lokaneeta focuses on the strategic significance of analysing it through legal discourse. The repressive laws and policies that are introduced to target a certain group of people in a certain context, if they remain unchallenged, could be further entrenched legally – and could be used on anyone, depending on the political context of the moment. Transnational Torture thus becomes a call for torture activists to try to understand the workings of law and liberal institutions while seeking political solutions and challenges to repressive actions.

What Lokaneeta has not scrutinised is the possible shift in how states inflict or deal with torture in the wake of neoliberalism. In other words, after the failure of the social-development projects in the Third World and cuts to the welfare state in the West, are modern states mainly ensuring repressive order in the interest of capital? Furthermore, is the heavy focus on legal discourse (as the approach to understanding state violence) underestimating the significance of political economy? Although these questions remain unanswered for the moment, Lokaneeta has produced a theoretically rich work developed through painstaking research. Those striving to understand the persistence of state violence, and rid society of it, would greatly benefit from reading Transnational Torture.

~ Prachi Patankar and Ahilan Kadirgamar are activists with the South Asia Solidarity Initiative (SASI) in New York. Kadirgamar is also a contributing editor to Himal Southasian.